All the Conventional Cohabitation, but No Nuptials

July 3, 2014

Field Notes

By TATIANA BONCOMPAGNI

When Rebecca Eckler and her boyfriend decided to have a baby and move in together three years ago, she had one condition. It wasn’t the promise of marriage, which Ms. Eckler deemed “so 2003,” but of a legally binding document that would dictate what would happen to the couple’s assets if they ever broke up.

So she turned to a cohabitation, or no-nuptial, agreement — like a prenuptial, but without the ensuing tossing of the bouquet and the rice.

The no-nup signed by Ms. Eckler and her not-necessarily-intended detailed everything from how the couple would divide household expenses to who would get the house if they split up. (It belongs to Ms. Eckler; she keeps it, and her boyfriend has to be out in two weeks if they break up.)

“It was literally a small novel,” said Ms. Eckler, a Toronto-based blogger and author of “The Mommy Mob,” which explores the world of blogging mothers.

Three years later, the couple is still together, in no rush to marry, and Ms. Eckler, for her part, feels more secure having the agreement. “You want to know where you stand from the beginning,” she said.

With more couples choosing to live together without marrying — the Census Bureau estimates that more than eight million couples were cohabiting in the United States in 2013, up from five million in 2006 — the potential pool of clients for these types of agreements is far from small.

Maria Cognetti, president of the American Academy of Matrimonial Lawyers, said most of the clients who ask for a cohabitation agreement have gone through marriage and divorce, and are in no hurry to revisit the travails of that journey. “They don’t want to get remarried, but they want the protection a pre-nup would provide,” said Ms. Cognetti, a divorce lawyer in Camp Hill, Pa.

Frederick Hertz, a lawyer with offices in San Francisco and Oakland, Calif., said that most of the cohabitation agreements he draws up concern only property and financial assets, and fall into two categories: those that prevent couples from going after each other’s assets if they part ways and those that provide financial security for the lower-earning partner after a breakup.

“I’ve done several where the woman is giving up her career to raise kids, and what we wanted to do is establish a safety net,” said Mr. Hertz, who is the author of “Counseling Unmarried Couples: A Guide to Effective Representation.”

Mr. Hertz said that behavioral stipulations, such as so-called weight clauses, are becoming obsolete, and any reference to intimate acts could render the agreement null and void due to prostitution laws and no-fault rules. “Agreements between unmarried couples are becoming more like marital agreements, and are equally ‘no-fault’ when it comes to allocating assets,” Mr. Hertz explained in an email. Mr. Hertz said fewer same-sex couples are seeking cohabitation agreements now that marriage has become an option for them in many states.

Cohabitation has become more common as social mores have shifted; mostly gone is the sentiment that such arrangements constitute “living in sin.” More women and men have delayed marrying and having children in favor of pursuing educations, careers and personal goals, said Christine B. Whelan, a sociologist in the School of Human Ecology at the University of Wisconsin at Madison.

Another factor, said Louise Truax, a matrimonial lawyer in Southport, Conn., is the high divorce rate — 40 percent of American marriages end in divorce or separation within the first 15 years, according to a federal survey.

“Relationships don’t carry the same sense of permanency they did 20 to 40 years ago,” Ms. Truax said. “Now it’s for better or worse or until I get sick of it.” Having a no-nup would presumably make extricating oneself from such entanglements easier and less costly.

Relationship experts disagree on the value of no-nup agreements.

John Curtis, a former marriage and family counselor, said couples are wise to discuss the issues raised by most cohabitation agreements early in their relationship, before arguments erupt and resentments have a chance to take hold. “It does spell out in advance those things that may become problematic,” said Dr. Curtis, the author of “Happily Unmarried: Living Together and Loving It,” an advice book geared toward cohabiting couples.

But Lauren Zander, the co-founder of the Handel Group, a company that offers life and executive coaching services, said she was uncomfortable with how cohabitation agreements seemingly turned relationships into business arrangements. “Something seems very absent of love and care,” Ms. Zander said. “There’s no trust.”

That might be a fair estimation in some cases. Marilyn Chinitz, a divorce lawyer in New York, said she recently created a cohabitation agreement for a professional athlete who has had numerous short-lived relationships with women who then became pregnant with his children. “We have drafted a cohabitation agreement that we feel protects him against the pitfalls of love,” Ms. Chinitz wrote in an email.

Likewise, an online dating website called Seeking Arrangement, which attempts to match so-called sugar daddies with the women who want to date them, has plans to provide a downloadable template for cohabitation agreements on its website.

“A lot of men who have been on this site are public figures, C.E.O.s and executives,” said Angela Bermudo, a public relations manager for the company. “When you take someone into your home and have a relationship, you need to protect yourself.”

None of that sounds the least bit romantic, but prudence can trump emotion even in the most durable of unions. Despite living, owning property and having children together, Justin Wolfers, an economist, and his partner, Betsey Stevenson, also an economist, have eschewed both marriage (it would mean they would pay more in taxes collectively) and a cohabitation agreement.

“There’s not a need because our relationship is so symmetric,” said Mr. Wolfers, a senior fellow at the Brookings Institution in Washington, who added that he and Ms. Stevenson, a member of President Obama’s Council of Economic Advisers, earn roughly the same income, and both had made “roughly symmetric” sacrifices for the other in their respective careers. The sentiment is that they would both walk away from a dissolution on close to the same footing.

And then there’s always the chance that a cohabitation agreement could actually cause a couple to break up. Alexandra Munoz, a nursing student from Rancho Cucamonga, Calif., signed a one-year cohabitation agreement with a man she met through Seeking Arrangement. In exchange for cooking and cleaning for the man, accompanying him to dinners with friends and promising not to flirt with other men, she says she received a $5,000 monthly allowance, the use of a white Bentley and a $2 million trust fund, plus her own wing in his Redondo Beach, Calif., home.

But when the man asked her to sign on for another year, Ms. Munoz balked. “I had everything I ever wanted, but I was anxiety ridden,” said Ms. Munoz, who worried about getting caught talking to other men on the phone. “I’m a very independent person.”

For more conventional partnerships, Mr. Hertz, the California lawyer, said the process of creating a cohabitation agreement can also reignite arguments about one partner’s spending habits or another partner’s poor financial investments.

“Once or twice a year it turns out to open up a Pandora’s box of blame,” Mr. Hertz. “But I’m a strong believer that if it is done right, it is a process that can bring the couple together.”